Mr X and HSE

Whether the HSE was justified in deciding that the applicant was not entitled to a statement of reasons as to why he was transferred to a different location for audiology services.

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 1 August 2014, the applicant applied to the HSE for a statement of reasons under the FOI Act in the following terms:

"I have been attending the Community Audiology Service in 44 North Great Georges Street, Dublin 1 for the past few years. Recently, and without notification, I have been transferred to the Community Audiology Services, Sheaf House, Exchange Hall, Belgard Sq North, Dublin 24. I request to know the reason why this decision has been made."

In its decision dated 23 September 2014, the HSE stated that the applicant did not qualify as a person with a material interest under section 18, and for this reason was not entitled to a statement of reasons for the decision. The applicant submitted an application for internal review on 6 October 2014. The initial decision of the HSE not to provide a statement of reasons was upheld in the internal review decision of 31 October 2014. On 10 November 2014, the applicant applied to the Commissioner for a review of the HSE's decision.

During the course of this review, Mr Art Foley of this Office informed the applicant of his view that HSE was justified in its decision in this case. The applicant indicated that he required a binding decision on the matter. In conducting this review I have had regard to correspondence between the applicant and the HSE, to correspondence between the HSE and this Office, and to correspondence between the applicant and this Office.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of this review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for a statement of reasons for transferring the provision of his audiology services to Sheaf House, Tallaght, from North Great Georges Street.

Analysis and Findings

Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it relates:-

"[I]f the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

A key consideration as to whether a person is entitled to a statement of reasons for an act of a public body is whether the act has the consequence or effect of conferring on, or withholding a benefit from the person and whether that benefit is also conferred on or withheld from persons in general or a class of persons as set out in section 18(5) of the Act. This Office considers that an applicant seeking a statement of reasons under section 18 bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of the public body, i.e. the applicant bears the burden of showing that he or she has a material interest in a matter affected by the act for which a statement of reasons is sought.

In its submission to this Office, the HSE stated that all persons in the Dublin Mid-Leinster geographic area within the applicant's catchment area previously attending North Great Georges Street were affected by a transfer of services. It explained that the Audiology Department, North Great Georges Street was restructured in July 2013 when Meath Audiology Clinics were transferred to North Great Georges Street. Since this restructuring has taken place, clients living outside of the Dublin North East Area can no longer attend the clinic at North Great Georges Street, due to the increased volume of service users residing in the Dublin North East Area and also the transfer of the Meath Audiology Clinics. As the HSE considered that the act in this case was an act which effected a class of persons of significant size, it considered that the applicant did not have a material interest for the purposes of the Act.

In my view, the applicant has not shown that the consequence or effect of the act of transferring him had the effect of conferring on or withholding from him a benefit and even if it had, the benefit would have been conferred on or withheld from a class of persons which is of significant size. Accordingly, I find that the HSE is not required to provide a statement of reasons under section 18, although it is quite clear that it has, nevertheless, explained why the applicant was transferred for audiology services.

It is important to note that the role of this Office is not to evaluate the appropriateness of the HSE's decision to transfer the provision of audiology services from one location to another, nor does this Office have the power to examine how public bodies carry out their functions generally.

Having reviewed the submissions of both the HSE and the applicant in this case, I find that the HSE was justified in its decision not to provide a statement of reasons to the applicant, as the applicant did not have a material interest in a matter affected by the act, within the meaning of section 18(5) of the Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the decision of the HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.